0520140091
04-29-2014
Complainant v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Health Resources and Services Administration), Agency.
Complainant
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Health Resources and Services Administration),
Agency.
Request No. 0520140091
Appeal No. 0120132480
Hearing No. 570-2010-00731X
Agency No. HHS-HRSA-008-2009
DENIAL
Complainant timely requested the Commission reconsider its decision in EEOC Appeal No. 0120132480 (November 5, 2013). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates that: (1) the appellate decision involved a clearly erroneous interpretation of material fact or law; or (2) the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. See 29 C.F.R. � 1614.405(c). For the reasons that follow, Complainant's request is DENIED.
This matter initially came before the Commission when Complainant appealed the Agency's final order finding that the EEOC Administrative Judge (AJ) properly issued a decision without a hearing, in which the AJ determined that Complainant failed to prove age and reprisal discrimination when she was reassigned from her position as Director of the Office of Legislation to the position of Senior Advisor for Special Initiatives. On appeal, the Commission affirmed the Agency's final order.1
In her request for reconsideration, Complainant argues that the Commission's appellate decision contains an erroneous interpretation of material fact and law because, if Complainant's evidence during the hearing was viewed in the light most favorable to Complainant, the AJ should have found in Complainant's favor or held a hearing.
For its part, the Agency requests that we affirm its final order because Complainant's "erroneous interpretation" arguments were put forth to, and considered by, the Commission on appeal and noted that Complainant does not argue that our appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Complainant is reminded that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at 9-17; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. The arguments raised by Complainant in her request have already been entertained on appeal.
After reviewing the previous decision and the entire record, the Commission finds that Complainant's request fails to meet the criteria of 29 C.F.R. � 1614.405(c); her request is therefore DENIED. The decision in EEOC Appeal No. 0120132480 is final. There is no further right of administrative appeal to the Commission regarding this matter.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 29, 2014
Date
1 The Commission also affirmed the Agency's finding that the AJ properly dismissed as moot the issue of whether Complainant was discriminated against on the basis of age and reprisal when her pay raise and bonus for 2009 were set at the "Fully Successful" level even though she received an "Exceptional" rating by her supervisor. Complainant does not challenge this finding in her request for reconsideration. Therefore, it is not addressed in this decision, as the Commission exercises its discretion to address only those matters expressly raised on reconsideration.
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0520140091
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520140091